Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 612 (MAD)

Kumar v. Muthu & Others

2009-02-19

A.C.ARUMUGAPERUMAL ADITYAN

body2009
Judgment :- This Revision has been directed against the order passed in EPR.No.46 of 2006 in O.S.No.35 of 2004 on the file of the Court of Principal District Munsif, Bhavani. 2.The grievance of the learned counsel for the revision petitioner is that the plaintiff in O.S.No.35 of 2004 had filed EPR.No.46 of 2006 to execute the decree in O.S.No.35 of 2004. In EP the revision petitioner / Judgment debtor had file Ex.R.1-receipt saying that in the presence of panchayadars and also in the presence of one T.N.Palanichamy he had partially discharged the decree amount to the tune of Rs.20,000/-. But the learned Execution Court without taking into consideration the receipt for payment of Rs.20,000/-issued by the decree holder, had ordered attachment of the property / scheduled to the execution petition belonging to the Judgment Debtor. 3.In support of his contention the learned counsel based his reliance on a ratio in 2006 SAR (Civil) 432 (Padma Ben Banushali & Anr. Vs. Yogendra Rathore & Ors), and would contend that the Executiing Court ought to have taken note of Ex.R.1-receipt issued by the Decree Holder for the discharge of the decree amount to the tune of Rs.20,000/-. The facts of the said case relied on by the learned counsel for the revision petitioner is that: the plaintiff in that suit filed a suit for eviction of the father of the respondents, who was tenant in the disputed premises. A decree was passed in favour of the landlords. The tenant filed an appeal before the District Court. Pending appeal, an application under Order 23 Rule 1 of CPC was filed by the tenant. The appeal was disposed of in terms of the said application, which contains the signatures of both the plaintiffs/landlords and the defendants/tenants. Thereafter, the decree holder filed execution petition to execute the decree which was resisted by the defendants / respondents on the grounds that the decree has become inexecutable and landlords were not ready and willing to perform their part of the contract and a suit for specific performance had already been instituted. But the decree holders pressed the execution petition on the ground that the adjustment pleaded by the respondents was not recorded in terms of Order 21 Rule 2 of CPC and that the Court cannot take cognizance of the adjustment under Sub-rule (3) of Rule 2, Order XXI CPC. But the decree holders pressed the execution petition on the ground that the adjustment pleaded by the respondents was not recorded in terms of Order 21 Rule 2 of CPC and that the Court cannot take cognizance of the adjustment under Sub-rule (3) of Rule 2, Order XXI CPC. It was also contended on behalf of the respondents that the landlords have given up their rights to execute the decree under the memo of compromise filed under Order 23 Rule 1 of CPC, and it will amount to conscious waiver and hence the decree holder is not entitled to execute the decree. The Executing Court held that the application filed under 23 Rule 1 of CPC was an application for the withdrawal of the appeal, which let to the adjustment and as said adjustment was not certified by the Executing Court, no claim of adjustment can be taken note of. In the revision, the High Court held that there was no adjustment between the parties. Before the Honourable Apex Court it was contended on behalf of the learned counsel for the appellants that the application filed under Order 23 Rule 1 of CPC did not in essence make the decree passed in favour of the decree-holders inexecutable. For that proposition of law reliance was also placed on 1997(1) SCC 373 (Sultan Begum Vs. Prem Chand Jain). Further, it was represented before the Honourable Apex Court that the suit filed for specific performance of contract was also dismissed and the appeal is pending. It was contended on the side of the appellants that since it is specifically provided by Section 47 that questions relating to the execution, discharge or satisfaction of the decree shall be determined by the executing Court, it would prevail over Order 23 Rule 2 including sub-rule (3) which prohibits the executing Court from recognising any payment or adjustment which has not been certified or recorded under Order 23 Rule 2. While allowing the appeal the Honourable Apex Court has observed as follows:- "Order 21 Rule 2 applies to a specific set of circumstances. If any money is payable under a decree, irrespective of the nature of decree, and such money is paid out of Court, the decree-holder, has to certify such payment to the Court whose duty it is to execute the decree and that court has to record the same accordingly. If any money is payable under a decree, irrespective of the nature of decree, and such money is paid out of Court, the decree-holder, has to certify such payment to the Court whose duty it is to execute the decree and that court has to record the same accordingly. Similarly if a decree, irrespective of its nature, is adjusted in whole or in part of the satisfaction of the decree-holder, the decree-holder has to certify such adjustment to that Court which has to record the adjustment accordingly. If the payment or adjustment is not reported by the decree-holder, the judgment-debtor has been given the right to inform the court of such payment or adjustment and to apply to that Court for certifying that payment or adjustment after notice to the decree-holder. Then comes Sub-Rule (3) which provides that a payment or adjustment which has not been certified or recorded under Sub-Rule (1) of (2), shall not be recognised by the Court executing decree. The expression "or the decree of any kind is otherwise adjusted" are of wide amplitude. It is open to the parties namely, the decree-holder and the judgment-debtor to enter into a contract or compromise in regard to their rights and obligations under the decree. If such contract or compromise amounts to an adjustment of the decree, it has to be recorded by the Court under Rule 2 of Order 21. It may be pointed out that an agreement, contract or compromise which has the effect of extinguishing the decree in whole or in part on account of decree being satisfied to that extent will amount to an adjustment of the decree within the meaning of the Rule and the Court, if approached." There cannot be two opinion about the rule laid down under the above said dictum. But the fact remains that with regard to the receipt dated 210. 2003 on which reliance was placed by the revision petitioner for the discharge of the decree amount to the tune of Rs.20,000/-, he has not produced the same before the Court which passed the decree as contemplated under Order 21 Rule 2 of CPC. Only after the decree holder has filed EP in the year 2006, the revision petitioner has filed the said receipt before the Execution Court. Only after the decree holder has filed EP in the year 2006, the revision petitioner has filed the said receipt before the Execution Court. Further, it is pertinent to note that as per the recitals of the said receipt Ex.R.1 the said amount of Rs.20,000/-was paid in the presence of one T.N.Palanichamy (attestor under Ex.R.1) and also in front of some panchayadars. But no panchayadar was examined before the executing Court. Neither any panchayadar nor the said T.N.Palanichamy was examined before the Executing Court. The scribe of Ex.R.1 was examined as R.W.2, but he has not deposed that Rs.20,000/- was paid in his presence. Under such circumstances, the Executing Court has correctly come to the conclusion that no credence can be attached to Ex.R.1, the alleged receipt for the payment of Rs.20,000/-. The petitioner has also not taken any steps to compel the attendance of T.N.Palanichamy to examined him before the Executing Court to prove his case. As per Order 21 Rule 3 of CPC, the Court executing the decree cannot give any credence to the alleged receipt Ex.R.1 since it was not certified under Order 21 Rule 2 of CPC. 4.In fine, the Civil Revision Petition is dismissed confirming the order of the Executing Curt in EPR.No.46 of 2006 in O.S.No.35 of 2004 on the file of the Court of Principal District Munsif, Bhavani. Connected Miscellaneous Petition is closed. No costs.